History Will Judge the ICTR - by Bernard Lugan

KKKarla by Duci Simonovic

The black dog in front is Zoran Djindjic. In the time when I made the poster he was alive.

The dog down with the mustache is the (Djindjic’s) police chief Mihajlovic.

The dog with the big nose is the (Dj…) minister of justice Batic.

The dog with the glasses is the (Dj…) minister for Kosovo Covic.

The dog who is fucking Covic is one of lieder of Albanian UCK Hashim Taschi.

History Will Judge the ICTR -- by Bernard Lugan

[So, I’m on the train to The Hague for this Conference thrown by the Defense Lawyers at the ICTR in Arusha, and this at the very moment that The General’s case is winding to a close--or so one hopes. I’ve just finished six-weeks’ work translating an extraordinary book by the former-Rwandan Ambassador to France, Jean-Marie Vianney Ndagijimana: ‘How General Paul Kagame Sacrificed the Tutsis.’ And, with still a slight jones from watching the Situation Room at midnight over the top of my MacBook, my face full of French and my head full of English writerly affectations, I decided I’d just get right back on to translating this Lugan piece about how History will judge the ICTR. Bernard Lugan is a French scholar who’s done a passel of good writing on Central Africa.

If you make it past this intro and actually read the Lugan article, I’m betting you won’t be able to stop scratching your head as to just how and why these ad hocs (primarily the ICTR and ICTY, though there are a bunch more now, like for Sierra Leone and Lebanon) are still standing. The original idea of International Justice was--as Ramsey Clark put it Saturday morning at the Conference--to limit power in pursuit of Truth and Justice in bringing an end to intra-State violence. But since these Tribs were the extra-legal spawn of the UN Security Council and, in practice, are so undisciplined, so unscrupulous, so judicially unethical and immoral in any human sense, that they have gone quite a ways in turning their putative purposes inside out and upside down. In fact, these two wings of the Western Vulture Culture (feeding on that smoldering putrescence left by the Globalization Hawks), can really only maintain a light-operatic gentility while continuing to lay waste to the rights, unto the very lives, of the superfluous (i.e., powerless) peoples of planet earth.

When the ICTY made the mistake of trying Slobodan Milosevic for whatever they thought they could get on him--and, of course, this changed from month to month, from amended indictment to amended indictment, until in desperation over ever being able to convict him of anything, they just had to have him murdered in his cell--the Yugoslav President characterized his Tribunal tormentors as ‘a farce.’ Way too kind, you ask me, considering what this ‘farce’ did to him, his family, his party and his country.

Currently in the box in The Hague, Dr Seselj, leader of the Serbian Radical Party, had a take that was a little more along the lines of what I’ve always felt about these Gilbert ‘n’ Sullivan Guignols: Dr. Seselj, charged primarily with Hate Speech, whatever that means, said simply, “This Tribunal can suck my dick!”

But the Conference--and this post--are not primarily about Yugoslavia--though the two wars, the two Tribunals are as inseparable as Tweedle Dum and Tweedle Dummer. (The ICTR and ICTY share the same appeals chamber--like in a cheap hotel--and that’s the appeals chamber that told the ICTR that they should take ‘judicial notice’ of the Rwandan genocide: meaning they should recognize it as a natural fact of Jesus, even if they can’t prove it!).

Lugan, like so many ‘experts’ seems pretty careless about what he knows and what he thinks we know. He gets names wrong (he has ‘Harbour’ for ‘Arbour’)--or maybe he’s just being anecdotal here, sketchy--but, hey, I don’t wanna nit-pick, piss off another ‘expert’--so let me just fill in a few spaces he left when it came to The General’s case--that’s General Augustin Ndindiliyimana, Chief of the Rwandan National Gendarmerie during the troubles, whose back we’ve had here at CM/P for some time now.

Sure, the Tribs are all about false witnesses giving scripted and rehearsed testimony as part of some plea deal with the DAs in Arusha or Kigali--and the rules of evidence and procedure (like the bad Joint Criminal Enterprise joke) are pretty much cooked down to allow the Prosecutor, who is indistinguishable from the Court, which is indistinguishable from NATO (which is indistinguishable from al Qaeda), to have it his way without breaking a sweat. But to be complicit in this shit, to dignify this grotesquery with your participation, is not without lethal side effects--Milosevic turned out so many prosecution witnesses in his court that Judge Richard May got brain cancer and died. So to see all these Canadian shysters in Arusha actually organize to fight against the essential injustice at the stinking heart of International Justice is a singularly gratifying surprise.

But more on the ADAD Conference anon (post hoctor proct, as Maitres Derek and Clive would have it)--after I recule my cul back to Paris. For now let Chris and Bernard Lugan have the parole:

Chris Black:

The latest development in the trial is the episode re the recanting prosecution witness, GFR. I can't remember if I told you. GFR was a major witness against The General re alleged crimes committed by gendarmes in his home town, including an allegation that they took part in a massacre at Kansi Parish church.

GFR contacted me by letter the day we made our oral argument, stating he wanted to recant as he had been forced to lie by the regime (he had escaped from prison in Rwanda and fled to Burundi). I raised it in court and asked for a meeting with the judges about what to do, as I knew if I raised it in court without seeing the judges first, the prosecutor would accuse me of fabricating the letter.

So I gave it to the judges in chambers with the prosecutor present. The prosecutor quickly accused me of fabricating the letter and being in cahoots with the witness. The judges, who have been fairly sympathetic to us the last year or so, rejected that suggestion and told me I could raise it in court, read the letter openly, so it is on the record, and ask for a remedy. They told the prosecutor that he could say what he wanted, but when I asked for a remedy they were going to do something.

So in open court I stood up, said this and that, read the letter and demanded that it be admitted as an exhibit, and that the judges throw out GFR's testimony and call for an investigation into how Rwanda fabricates witnesses and the prosecution’s role in it.

The Prosecutor accused me of fabricating the whole thing.

The Judges told me to file a written motion asking for a remedy. I did. The Prosecutor replied that I better be careful as an investigation could lead to my arrest. I protested that threat. The Judges reprimanded the prosecutor for those remarks.

The judges then appointed in August an amicus curiae to try to contact GFR and see if he really wrote the letter and if he was telling the truth about its contents. That lawyer did meet with GFR in Burundi in mid-September and filed his report which we were finally given in late October.

He confirmed that in his opinion GFR was truthful and that GFR explained how he had been forced to lie against The General on threat of death and that one of the ICTR prosecution lawyers knew about this and he gave the name.

The Judges then asked what I wanted, so I asked that his testimony be thrown out and that they do the same with the entire group of witnesses from that town as they were all linked and that they consider a deeper investigation. However, that could take years and I don’t want The General rotting in prison until that takes place, so I asked that if they call for an investigation he be released on bail. If not, then to just throw out the charges related to that witness (they are the worst charges against him). We are waiting for their decision.

--mc]

And here’s Bernard Lugan:


The ICTR Faces the Judgement of History

by Bernard Lugan
Expert witness before the ICTR
From B. Lugan's official Blog


To a professional historian the methods of the ICTR are unacceptable for at least six important reasons:

--Its refusal to consider the evolution of knowledge
--Its obstinate refusal to investigate the attack of 6 April 1994
--The unethical manipulations of the Prosecution
--Its resort to false witnesses
--Its suppression of witnesses for the defense and its rejection of evidence benefitting the defense
--Its violation of the neutrality principle



1-Its refusal to consider the evolution of knowledge

At no time has the Prosecution considered the new facts that have
developed over the course of the Tribunal's existence. Quite the contrary,
it remains grounded, even mired, in by-now obsolete assumptions, based
primarily on Alison Des Forges, the Prosecution's expert whose constant
parti pris, pseudo scientific presentation, confused reasoning and fuzzy
methodology have allowed the Prosecution to construct a false history of
the genocide from which the Tribunal's judgements have been rendered.

Compared to what we knew right after the assassination of President
Habyarimana, what new knowledge do we have in 2009, 15 years later and
never considered by the ICTR?

-The attack of 6 April 1994 that took the life of Rwandan President
Habyarimana was not carried out by so-called 'Extremist Hutus,' but
rather by the Tutsi leadership of the faction currently in power in Rwanda
(Bruguière 2006; Merelles 2008)

-Between 1991 and 1994, several important so-called 'moderate' Hutus,
notably Félicien Gatabazi and Emmanuel Gapyisi, were assassinated,
which, at that time, brought on the condemnation and sanctioning of the
Habyarimana regime, accused of having ordered these crimes. But,
these murders were also carried out on the orders of the clique currently
in power in Kigali. The investigations of French judge Jean Louis
Bruguière (2006) and Spanish judge Fernando Andreu Merelles (2008)
have even yielded the names of the shooters, the drivers of the vehicles
and motorcycles, etc., used in these attacks.

-In 1991 and 1992, dozens of blind attacks (mines, grenades, etc.,)
exacerbated ethnic hatred. When they happened they were credited
to President Habyarimana's henchmen, his famous 'death squads.'
Today, Judges Bruguière and Merelles contend that these attacks
were carried out by members of the RPF and that they were part of
a strategy of heightening tension to provoke sufficient chaos to allow
the RPF to seize power. (Bruguière, 2006; Merelles, 2008).

-The Interahamwe, whose name is associated with the Tutsi genocide,
was created by a Tutsi who later became a Minister in the government
of General Kagame (Anastase Gasana). The president of this militia in
Kigali (Robert Kajuga) was, himself, a Tutsi, as were many of those who
infiltrated important positions in the organization and who were later
made known to us by name and sometime by nickname. (Bruguière,
2006; Merelles, 2008).

-Trial after trial, in spite of all its efforts, the Prosecution of the ICTR was
unable to show that the genocide was programed, even if it did, in fact,
take place. With the accumulation of countervailing evidence, Alison
Des Forges was forced to admit that with the convoluted presentation of
events that had become her trademark, she was never able to prove the
intention to commit genocide:

"(. . .) everything about the existence of a clear plan, I don't have any
way, any method to establish that people who took part in this plan
had the intention to commit a genocide" (ICTR-97-31-T, Monday
5 March 2007, Des Forges)

In 2000, with a great sense of immediacy, the OAU (Organization of
African Unity) had this to say about this subject:

"(. . .) There is no document, no transcript of any meeting and no other
evidence that puts a finger on the precise moment when certain
individuals, within the cntext of an organized plan, decided to eliminate
the Tutsis (. . .) What we know (. . .) is that after 1 October 1990, Rwanda
went through three and a half years of violent anti-Tutsi incidents, any
one of which could have been interpreted in retrospect as a deliberate
stage of an elaborate conspiracy which would end up with the shooting
down of President Habyarimana's plane and the triggering of the
genocide. However, all these interpretations remain mere speculation.
No one knows who shot down the plane, no one can prove that the
innumerable demonstrations of anti-Tutsi sentiment over those years
were part of a grand diabolical plan." (OAU, report 2000, 7 January)

At no time has the Prosecution at the ICTR acknowledged these very
essential pieces of new information, and, quite to the contrary, it continued
to designate the so-called 'Extremist' Hutus as the only ones responsible
for this tragedy. While the indictment remains frozen in these outdated
assumptions, the defendants suffered and they continue to suffer through
a process that violates their rights while they are being tried for charges
that are now obsolete.


2- Its refusal to investigate the attack of 6 April 1994 against the life of then
Rwandan President Juvénal Habyarimana that is the origin of everything . . .

The ICTR has constantly claimed and tried to make us believe that the
attack of 6 April 1994 and the genocide that it led to are unconnected.

With the exception of the 8-year investigation led by French anti-terrorist
judge Jean-Louis Bruguière, there has been no inquiry into this international
terrorist act which was the spark that set off the genocide. On the other hand,
it is possible to demonstrate constant obstruction to the search for the truth
by the UN as well as by the ICTR.
A review of some dates and other facts is necessary here:
.
-On 7 April 1994, the day after the attack that cost the lives of two sitting
heads of state, the President of the UN Security Council invited the
Secretary General of the United Nations to gather all relevant information
concerning this terrorist act and to compile a detailed report on it for the
Security Council.
-The Secretary General's response was silence. So, on 21 April 1994,
the Security Council once again asked the UN Secretary General to
deliver to it all the information on the subject of this attack, but again
without success.
-On 27 May 1994, the Security Council reiterated its earlier demands, and
once again received no satisfaction.
-On 28 June 1994, Mr. René Degni Segui, UN Special Envoy to Rwanda,
admitted that the attack of 6 April was most certainly the cause of the dramatic
events that followed, that is, of the genocide. But after he demanded the
formation of an investigatory commission, he was told that the UN did not
have the budget for that..
-Nevertheless, in the Autumn of 1994, a commission of experts submitted
a report to the UN Secretary General demanding the creation of an
International Tribunal whose mission would be "to investigate, among
other things, the events that led to the current situation, especially the attack
on the airplane carrying the presidents of Burundi and Rwanda."


Effectively created on 8 November 1994 by UN Security Council Resolution
955, with authority over events between 1 January and 31 December 1994,
to judge the alleged organizers of the Rwandan genocide of 1994, the ICTR
(International Criminal Tribunal for Rwanda) was set up in Arusha, Tanzania.

So the attack of 6 April 1994 is unquestionably included within the
time-window of the Tribunal's authority. Yet, with great consistency, the
ICTR has refused to investigate this attack. However, in February 1997,
certain evidence gathered by ICTR investigators working in Kigali, Michael
Hourigan chief among them, established the responsibility of the RPF in this
attack.

These investigators were acting under the authority of the ICTR Chief Prosecutor
Mme Louise Arbour who, at that time, considered the attack against the Rwandan
president's plane to be well within the authority of the ICTR.

On 1 August 1997, a report establishing the responsibility of the RPF in
the attack of 6 April 1994 was submitted to the ICTR, which did not
follow-up on it. The existence of this document was disclosed in March
2000 by a Canadian newspaper. Forced to react, on 27 March 2000,
UN Legal Services acknowledged the reality of this report, specifying
that it had been directly sent to the Chief Justice of the ICTR in Arusha.

The ICTR refused to furnish this document to Judge Bruguière who was
investigating the attack of 6 April 1994:

--"(Considering) That an international rogatory letter was delivered
on 23 May 2000 to the authorities of the I.C.T.R. requesting a
copy of this report and of the ‘internal memorandum’ that was
sent to Mme Louise ARBOUR; and
That though Madame Navanethem PILAY, President of the Tribunal,
let it be known in response to this judicial inquiry that she, in fact,
was in possession of the document in question, she said it was
impossible for her to respond favorably to the French request;"--
(the Report of Jean-Louis Bruguière, The Superior Court of Paris,
17 November 2006, ¶s 123 & 124, CM/P translation at
http://cirqueminime.blogcollective.com/blog/_archives/2007/9/30/3262522.html)--


Fortunately for the progress of the investigation, the 'Hourigan Report' got
to Judge Bruguière despite the letter of refusal from the ICTR:

--"(. . .) on 31 August 2000, the Court of Paris, on the instructions of the
Minister of Justice, passed on a copy of said report, which was attached
to the current with a view toward its future use; and
That the documents thus sent by the Court of Paris were authenticated
by Mr Michael HOURIGAN, (. . .) at the time of his testimony in Paris on
29 December 2000;"--
(the Report of Jean-Louis Bruguière, The Superior Court of Paris,
17 November 2006, ¶s 125 & 126, CM/P translation at
http://cirqueminime.blogcollective.com/blog/_archives/2007/9/30/3262522.html)--

Mr. Hourigan gave very important information to Judge Bruguière:

--"(. . .) with regard to his mission for the I.C.T.R., Michael HOURIGAN
stated that the investigators on his team, empowered by their superiors
to investigate the attack, considered themselves to be entering a field
of inquiry within the authority of the Tribunal, never found any tangible
evidence implicating the Hutu extremists, but, on the contrary, were
drawn to an evidentiary trail leading directly to the R.P.F.;
(. . .) That on a secure telephone line from the U.S. Embassy in Kigali,
he had, on or about 7 March 1997, a conversation with Madame Louise
ARBOUR and that in the course of their exchange she told him that she
had received, through other channels, intelligence that backed up his own
and that at no time had she told him that the investigation into the attack
was not within the authority of the I.C.T.R.;"--
(the Report of Jean-Louis Bruguière, The Superior Court of Paris,
17 November 2006, ¶s 129 & 133, CM/P translation at
http://cirqueminime.blogcollective.com/blog/_archives/2007/9/30/3262522.html)--

Later under questioning by Judge Bruguière, Michael Hourigan stated
that Mme Arbour had, at that time, suddenly changed her opinion. Contrary
to what she had told Hourigan before, Arbour now criticized him for having
conducted his investigation, which, she said was outside the authority of the
ICTR, and then she told him to break off all relations with his informants.
This position was confirmed by at least one other investigator.
(the Report of Jean-Louis Bruguière, The Superior Court of Paris,
17 November 2006, pp 22 in Fr original, CM/P translation at
http://cirqueminime.blogcollective.com/blog/_archives/2007/9/30/3262522.html)--


A decade earlier, on 7 February 1997, Maitre Tiphaine Dickson, the
defense lawyer for Georges Rutaganda at his trial before the ICTR,
made a request that bench order the Prosecutor to make public all
the evidence that he had on the subject of the attack against the
president's plane, as well as to initiate an investigation on this subject.
The response she received was, in its own way, stupefying:

--"Our responsibility is not to conduct an investigation into a plane crash (sic!!!),
this is not our job. So, I am going, in the most categorical way, to set this
question aside. And, first of all, I will say that we don't have to conduct such
investigations, we don't have to report on such investigations either.
Secondly, it is not our role, it is not our mission to conduct investigations
into the crash (sic!!!) of a plane carrying some presidents or vice-presidents.
This question does not fall within our authority."--
(ICTR 96-3-T, Prosecutor v Rutaganda, 7 February 1997).


In December 1999, without fear of contradiction, and completely turning
the truth inside out, the Prosecutor, Mme Carla Del Ponte, stated with
serene confidence:

--"If the Tribune doesn't do anything about it (the attack), it is because it
does not have jurisdiction in the matter. It is quite true that this is the
event that triggered everything. But as such, the act of attacking an
airplane and killing the president does not fall within the articles that
define our jurisdiction."--

So, if we follow Mme Del Ponte's reasoning, everything that contributed to
the 'preparation' of the genocide is within the authority of the ICTR, but not
the attack, itself, which, she tells us, is the 'event that triggered it all,' and
that she, furthermore, considers one of the elements in the planning of
the genocide.
Special justice allows the taking of liberties with logic, history and, especially,
the law. . . .


3- The Prosecution and its manipulations

Captain Innocent Sagahutu, who commanded Squadron A of the
Reconnaissance Battalion (Recce) of the old Rwandan Army (FAR), is a
prisoner of the United Nations being held in Arusha since February 2000
because of an incredible manipulation by the Prosecutor. In his indictment
dated 20 January 2000, the Prosecution wrote, in effect, that Capt. Sagahutu
was the 'second in command' of the Reconnaissance Battalion (Recce).
that due to this fact he had authority over the whole battalion, and that he
was thus responsible for all crimes committed by any of the members of
this unit.

The improbability of such a charge did not escape the Court which:

--"(. . .) invited the Prosecutor to verify the official post he (Capt. Sagahutu)
occupied in the Reconnaissance Battalion of the Rwandan Army at the
time of the facts in the case and failed to correct the information provided
in the indictment. (ICTR-Decision of 25 September 2002, ¶ 30)--

But, in the modified indictment of 23 August 2004, the Prosecutor did
not follow the orders of the Court, and even dared to write the following
lines:

--"At the time of the events cited in the present indictment, Innocent Sagahutu
was assigned as the second in command of the Reconnaissance Battalion
(Recce) of the Rwandan Army and was responsible for Company A of said
battalion. He held the rank of Captain. In his position as second in command
of the Reconnaissance Battalion or in his duties, Innocent Sagahutu was
given authority over every unit of the battalion."--
(ICTR-00-56-1, Modified Indictment, 23 August 2004, ¶s 11 & 12).

Not having verified if Captain Sagahutu was, or was not, "the second in
command" of the Reconnaissance Battalion known as Recce, the Prosecutor
maintained his suppositions, even adding, peremptorily, the qualification
"or in his duties." But, the Prosecutor added, in a totally and intrinsically
fantastic way, that the duties of the "second in command" assigned to
Capt. Sagahutu were mentioned only as a way to save an indictment
from perdition because of its total disconnect with the facts.


It is painful to have to mention that the Prosecutor did not even make the
effort to verify the grounds for his accusations when he had in his possession
the official documents that indicated the innocence of the defendant, in this
case, the schedule of postings of the officers of the Rwandan Army in
1 January 1993 and 1 March 1994, a document that was not unknown to him
because it is referred to by the ICTR as K0078420-K0078512. But, this
document shows that "the second in command" did not exist within the FAR,
and neither did the "officers performing these duties," other than for some
duly specified exceptions, none of which exist in the present case.

So the Prosecutor not only hid the evidence that would acquit the
defendant, but even more, he invented and promoted the opposite with
full knowledge of what he was doing. Before any other court but the ICTR,
we could be talking here about a mistrial with all that that implies.


4- Its resort to false witnesses

The witnesses at the ICTR come in large part from Rwanda where they
are imprisoned or 'free,' but always held accountable for their statements
and their testimony when they return to Kigali. So their honesty is subject
to question.

One example among many will illustrate my point: heard in closed session
by the ICTR, an anonymous witness for the prosecution who is identified as
"XXQ" stated under oath that on 15 February 1994, at 10 am, Colonel--today
General--Gratien Kabiligi (ICTR-97-34), came to Ruhengeri by helicopter on
orders from the Operations Section, and that he presided over a meeting
there, telling those officers present that the "genocide had to begin on 23
February 1994 and everywhere in Rwanda at the same time (. .)."

Throughout this testimony, the Prosecution reinforced its assumption which
is, let's remember, that the genocide was programmed and that the
assassination of President Habyarimana on 6 April 1994, that is, less than
two months later, had nothing to do with it.

Since the ICTR works on the Anglo-Saxon system of Common Law, no
examining judge, in pre-trial, to accuse or acquit, or to 'weed out' the
fantasists or the liars, before testimony is admitted; but this was an
actual instance of a false witness.

Testifying before the ICTR, Belgian Colonel Luc Marchal, former commander
of the United Nations Assistance Mission in Rwanda (UNAMIR) section in
Kigali, explained that:

--conforming to the Arusha Accords and the agreement for the Arms
Consignment Zone in Kigali, the FAR's helicopters were at that time placed
under the control of UNAMIR in the hangars at the International Airport at
Kanombe. Under 24-hour surveillance, they were disarmed and their
weapons were stocked in separate hangars;--

--every flight plan was submitted for strict and obligatory authorization to
the UNAMIR which could then warn the RPF that the flight was authorized
and for a very good reason. But, with supporting documents, Col. Marchal
demonstrated that on 15 February 1994, no flights took place and that,
consequently, Col. Kabiligi could not have gone to Ruhengeri by helicopter;--

--furthermore, on this day, 15 February 1994, Col. Kabiligi could not
have physically been in Ruhengeri because of what had just taken
place in Kigali, the inspection of the Belgian contingent of UNAMIR
by Lt. General Uttyerhoven, Inspector for the Belgian Army on a special
mission from Europe. But, between 10 am and 3.30 pm, Col. Kabiligi
took part in the whole inspection, which brought this from Col. Marchal:--

-- --"I can confirm to you that on this day and at the hour that you have
mentioned, Colonel, now General Kabiligi was in my presence."
(ICTR-98-41-T, Marchal, 20 November 2006, p. 14.)-- --

So, "XXQ" gave false testimony. Sure, General Kabiligi was eventually
acquitted, but he spent 10 years in prison on the strength of this testimony
which was unverified by the ICTR, but so useful to the Prosecutor.


5- Witnesses for the defense are disqualified and evidence for acquittal
is rejected. . .

Before the ICTR, it often happens that witnesses for the defense are
disqualified and that evidence for acquittal is rejected. The case of
Ndindabahizi (ICTR-2001-71-T) is indicative in this regard because
it presents several properly hallucinatory examples.

Emmanuel Ndindabahizi, Finance Minister of the GIR (Interim Government
of Rwanda) was charged with genocide and murder. At his trial, the
Prosecutor presented 14 witnesses accusing him. The "honesty" of 11
of them being considered questionable, the judges removed them straight
away and only three witnesses for the prosecution were kept, and it is only
on their testimony that Emmanuel Ndindabahizi was convicted.

These three anonymous witnesses, whose code names were CGY, CGN
and CGC, began by stating that they knew the accused very well because
he was the manager of the Trafipro peasants' cooperative store in Kibuye.
CGM added that he knew Emmanuel Ndindabahizi in 1966-67 as a teacher
in Nyarutovu. But, as was established, Emmanuel Ndindabahizi was never
the manager of a Trafipro store and also never a teacher. . . . A 'normal' court
would have understood from the evidence that it was in the presence of
'dubious' witnesses, but the trial chamber at ICTR where Emmanuel
Ndindabahizi was tried could not disqualify them for the simple reason that
with 11 other witnesses already having been disqualified, the Prosecutor
might well have found himself completely empty handed. And without
prosecution witnesses, how do you continue to develop the case against
the accused?

But the most incredible is still to come. The jurisprudence of the ICTR allows
non-corroborated witnesses to be accepted, and so it is only on the testimony
of CGY that Emmanuel Ndindabahizi was found guilty of genocide on the hill
at Gitwa on 23 April 1994, and only on the testimony of CGC that he was found
guilty of murdering one Mr. Nors, a mixed race Belgian Rwandan.

But, in another trial before the ICTR, involving the same Prosecutor,
Me Philips Adeogun, the witness CGY stated under oath that no massacre
took place on the hill at Gitwa between 20 and 26 April 1994. In the
Ndindabahizi trial, once again under questioning by Prosecutor Philips
Adeogun, and still under oath, CGY calmly confirmed that Emmanuel
Ndindabahizi took part in the genocide of the Tutsis at Gitwa between
23 and 25 April 1994 and that he had witnessed it. These two suspect
testimonies were allowed by the Court to stand.

On the other hand, three witness for the defense were disqualified:

-the witness DC, sentenced to life in prison in Rwanda, totally exonerated
the defendant but the Court rejected his testimony.

-a Tutsi legislator who lost his family during the genocide in the region
where Emmanuel Ndindabahizi was supposed to have committed these
murders which had been investigated for a long time, questioned the
survivors and the inhabitants of the hill at Gitwa to know how, by whom
and where his loved ones had been massacred. Before the Court he
stated that the name of Ndindabahizi was never spoken by anyone he
interviewed. This testimony was not considered in the judgement.

-the witness DX, former investigator for the ICTR who had interrogated
Emmanuel Ndindabahizi before his arrest, declared to the bench that
Ndindabahizi was only charged because he refused to "make a deal"
with the ICTR. In reality, he declined "the offer" that the Prosecutor
made him to become a snitch for the ICTR in exchange for dropping
the charges against him. His testimony was rejected.


A document entitled "The Preliminary Report Identifying the Sites of the
Genocide and of the Massacres from April to July 1994" put out in February
1996 by the Rwandan Ministry Higher Education on Research in Science
and Culture, is used by the ICTR which has made of it a judicial notice
because it collects all the places where the genocide happened, the
number of victims and the names of the killers or those who ordered the
killings. The name of Emmanuel Ndindabahizi is nowhere in this report.
The Court refused to consider this fact as a means of defense for the
accused. But, at the same moment, this document was presented and
accepted as evidence for the prosecution in another trial, that of the
so-called "members of the government."

Before the ICTR, when the same document was presented by the
Prosecutor, it was accepted as evidence of guilt, but when it was
presented by the Defense, it was rejected.

Finally, regarding Emmanuel Ndindabahizi being charged with the
murder of Mr. Nors: the daughter of the murdered man testified before
the ICTR, claiming that Ndindabahizi had nothing to do with murder of
her father, who had been killed over a private disagreement by
someone named Nkubito, who was later tried and convicted of this
murder by the court in Kibuye, and has since died in prison. For the
sake of justice, the charges against Ndindabahizi should have been
dropped at this point, but nothing at all was done.

On 15 July 2004, the ICTR convicted Mr. Emmanuel Ndindabahizi and
sentenced him to life in prison for genocide on the hill at Gitwa and the
murder of Mr. Nors!!!


6- Its violation of the neutrality principle


On 23 November 2006, reacting to the Bruguière report's charges that
the RPF was responsible for the assassination of President Habyarimana,
Mr. O'Donnell, then the spokesman for the ICTR, was clearly out of his
realm when he claimed he had documents that proved the FAR was in
possession of SAM 16 missiles, something which was unbeknownst to
Judge Bruguière, and that, under these circumstances, the French judge
had been premature in his charging the RPF.

As Colonel Bagosora was accused by Mr. O'Donnell, on 25 November 2006,
his Defense team wrote to the Clerk of the Court to ask him to retract these
"erroneous and false" statements. On 30 November 2006, the Public Affairs
and Information Unit put out a less than subtle communiqué in which the
ICTR Administration acknowledged that their spokesman had repeated
information coming from the Prosecutor's office.
So, Mr. O'Donnell:

willfully 'tricked out' the reality of the evidence file, in hopes of limiting
the range and effects of the Bruguière Report, deliberately violated
the principle of neutrality to which he is sworn, and made the spokesman
a de facto member of the Prosecution's team.

But, these false claims should not have been made in any case. A little
more than a month before Mr. O'Donnell's unfortunate inventions, the
Tribunal had examined at great lengths the information to which he
alluded and that the Prosecution tried to pass off as evidence that the
FAR possessed SAM 16 missiles.

To understand this manipulation, it is important to have a sense of
the chronology:

-In the Summer of 1991, Col. Laurent Serubuga, Chief of Staff of the
Rwandan Army (FAR), asked the Egyptian government, which had
been a principal arms supplier to Rwanda, to send him a pro-forma
invoice for the eventual purchase of SAM 16 missiles.

-On 2 September 1991, the Egyptians sent this document to
Col. Serubuga.

-On 17 January, after having studied it thoroughly, Col. Serubuga sent
it to the Minister of Defense asking him to give it his approval.

-In April 1992, a coalition government led by the opposition to
President Habyarimana was put in place.

-In June, Col. Serubuga was replaced as Chief of Staff of the FAR by Col.
Déogratias Nsabinmana. The opposition government known as the
'Coalition,' and whose Prime Minister was Mr. Nsengiyaremye of the
MDR, did not follow-up on this request so as not to inconvenience the
RPF, on whom it was depending to defeat President Habyarimana.

So the record could not be clearer: there was no order, thus no purchase
and furthermore no delivery of the SAM 16 missiles by Egypt. So the FAR
did not have these anti-aircraft missiles, which was formally confirmed
before the ICTR by Belgian Col. Luc Marchal, at that time the Chief of the
UNAMIR section in Kigali and in charge of the inventory of confiscated
war materials from the FAR.
(ICTR-98-41-T, Marchal, 30 November 2006, p. 30).

Under such circumstances, how could Mr. O'Donnell have referred to
these documents? It was at the trial of Col. Bagosora that the Prosecutor
presented the pro-forma Egyptian invoice and the technical notes that
were annexed to it to be used against the defendant. He thus associated,
in a totally convoluted way, the name of Col. Bagosora to this file solely
because the defendant was at that time Commander of Camp Kanombe
and had full control of the anti-aircraft units of the FAR. The implication
was quite clear: the 'brains behind the genocide' had control over the
SAM 16 missiles bought from Egypt, so it was Col. Bagosora who shot
down President Habyarimana's plane. QED!

So the Prosecutor's argument rested on the manipulation of a pro-forma
invoice that he tried to pass off as an actual bill(!!!). In the face of such
enormous 'evidence tampering', the Tribunal was bound to react because
it would go to its credibility, and on 17 October 2006, it set aside all
responsibility on the part of Col. Bagosora in the attack against President
Habyarimana:

"No allegation implicating the Accused (Bagosora) in the
assassination of the President is to be found in the indictment, the
Pre-Trial Brief or any other Prosecution communication. Indeed, no
actual evidence in support of that allegation was heard during the
Prosecution case.” ( TPIR- Decision on Request for Disclosure and
Investigations Concerning the Assassination of President Habyarimana
(TC) 17 October 2006)

Before the Tribunal, the neutrality principle has been flouted, and there is
even, perhaps, a sort of understanding between the Prosecution, and the
ICTR's Communication Unit, that is, Mr. O'Donnell. Why would the
Prosecution and the ICTR's spokesman take such huge risks? The answer
is clear: the official thesis shared by the regime in Kigali and the Prosecution
at the ICTR is broken to bits because of the evolution of historiography. The
Prosecutor who saw, in session after session, his indictments dissolve like
popsicles in the desert sun, had no alternative strategy to shift to. He was left
totally without a case, which is why he resorted to the incoherences, the
evidence tampering and the manipulations of documents and facts like those
we have just entered into evidence.

The judgement of history will be very severe toward the ICTR. A half century
after the Stalinist trials in the USSR, we ought to be able to think that such
aberrations are no longer possible. Especially as the ICTR is a creature of the UN. . . .
The Stalinist Tribunals at least had the advantage over the ICTR of not being meant
to work for the 'reconciliation' of communities. . . . It is further legitimate to wonder if
such violations of the most elementary principle of the law, if such an absence of any
of the exigencies of the Scientific Method, would have taken place if the ICTR had
been trying Whites and not Blacks, and if the trials had not been held in Arusha, in
a veritable closed session to the media.

*****************************************


Bernard Lugan was an Expert Witness in the cases of Emmanuel Ndindabahizi
(ICTR-2001-71-T), Théoneste Bagosora (ICTR-98-41-T), Tharcisse Renzaho
(ICTR-97-31-I), Protais Zigiranyirazo. (ICTR-2001-73-T), Innocent Sagahutu
(ICTR-2000-56-T) , Augustin Bizimungu (ICTR- 2000-56-T). Commissioned
in the cases of Edouard Karemera (ICTR-98-44 I) et J.C Bicamumpaka.
(ICTR-99-50-T). A synthesis of these reports and work of the ICTR Bernard
Lugan (2007) Rwanda : Contre-enquête sur le génocide. Paris.

A. Des Forges was the Prosecution's Expert Witness in the trials of Akayezu (ICTR-
96-4-T), Gacumbitsi (ICTR- 01-64-T), MEDIA compiles the cases of
Nahimana Ferdinand (ICTR-96-11), Ngeze Hassan François (ICTR-97-27) and
Barayagwiza Jean Bosco (ICTR-97-19). In the case of Emmanuel
Ndindabahizi (ICTR- 01-71-T) , in the Butare trials Butare combining the cases of
Kanyabashi Joseph (ICTR-96-15),Ndayambaje Elie
( ICTR-96-8), Nsabimana Sylvain (ICTR-97-29), Ntahobali Arsène
(ICTR-99-21),Ntaziryayo Alphonse (ICTR-97-29) and Nyiramasuhuko Pauline
(ICTR-99-21), in the cases of Bizimungu Casimir (ICTR-99-45),
Mugenzi Justin (ICTR-99-47), Bicamumpaka Jérôme (ICTR-99-49),
Mugiraneza Prosper (ICTR-99-48), in the case known as MILITAIRES I
combining the cases of Colonel Bagosora Théoneste (ICTR-96-7) of Général
Kabiligi Gratien (ICTR-97-34), of Lt Colonel Nsengiyumva Anatole
(ICTR-96-12) and of Major Ntabakuze Aloys (ICTR-97-30), as well as in the cases of
Rwamakuba, (ICTR- 98-44-T) and Renzaho (ICTR- 97-31-I).
Bruguière J-L ( 2006) Judgement of Jean-Louis Bruguière, Tribunal de
Grande Instance de Paris, Paris, 17 November 2006.

But only the Hutus were tried while the ICTR constantly refused to go after
the Tutsis, beginning with those who are known to have ordered or executed
various crimes and attacks some of which have been noted here.

Report of the International Group of eminent individuals for leading an
investigation into the genocide of 1994 in Rwanda and its consequences
on the region of the Great Lakes. Addis-Abeba, July 2000, 600 pages.

In June1994, in Tunis, the members of the OAU demanded the creation of an impartial commission of inquiry.
The General Prosecutor at the ICTR was Mr. Richard Goldstone (Nov. 1994 to
Sept. 1996), Mme Louise Arbour (Sept. 1996 to Sept. 1999), Mme Carla Del
Ponte (Sept. 1999 to Aug. 2002) and Mr. Hassan Bubacar Jallow from Aug.
2002 to the present.